There is another argument that if the networks hadn’t of wrongly called Florida for Gore before the polls had been closed, that Bush would have gained more votes in the Panhandle as well as other states where polls hadn’t closed.
I submit both arguments are meaningless after the fact.
Yet the FSC only wanted to count the ‘undervotes’ instead of as the statute states ‘all the ballots’ which may have uncovered double-punched ballots with a circle around the intended candidate. By including only ‘undervotes’ in the contest, the FSC ignored the law, and a possible motherlode of Gore votes. The other side of the argument is that the double-punched ballots are illegal by statute, but couldn’t they be subject to the same error that creates ‘undervotes’.
Okay, I heard some spin from a Republican that in the count of the ‘undervote’ in Broward, 25% of the undervote recovered a vote for V.P. Gore, while in Palm Beach, only 4% of the ‘undervote’ was recovered. If true, why is there such a disparity in numbers.
I don’t intend a sustained hijack of this thread to pursue my point, but I need to answer this:
I must not have been very clear. I’m not pounding my little fists on the table demanding that my “uninformed opinions” be respected. I’m saying that my (or your or RTFirefly’s) interpretation of a constitutional issue cannot be invalidated by case law. The Supremes do not decide constitutionality purely on the basis of case law. If that were true, any skilled law clerk could render a decision on such issues. We can, indeed, give a valid opinion on USSC actions, on the basis of our understanding of the constitution.
If you wish to fight ignorance, there’s nothing stopping you from responding to a reasoned examination like RT’s (which took issue with Scalia’s statements regarding equal protection, not with the legality of the stay) with “Very interesting remarks, but here’s what previous courts have found…” You’ve chosen instead to say, in effect, “How irritating of you ignorant people to criticize a court decision; you should just shut up and let us lawyers explain it to you.”
In the vast majority of his posts, he has conducted himself with a clarity and deference that is entirely un-lawyerlike. Indeed, his conduct borders on treason to his profession, by treating the opinions of we, the unwashed and unbarred, as if we could in fact dimly understand the obtuse and abstract machinations of The Law. In the words of Dickens, “All professions are conspiracies against the laity”. Counselor has strayed far from the consensus of his profession, presenting to us technicalities in more or less “plain” English.
Of course, some of his discourse must, by its very nature, appear obfuscatory, if for no other reason, that the creature itself is draped in shadows. In loyalty to his kind, he may point out that the Emperors clothes are diaphanous, that they are translucent to the point of being transparent, but he cannot state the “plain truth”. In law, the “plain truth” almost never exists. Indeed, I find that the clarity and pertinacity of his thought very nearly equals my own!
The Defendant shall go forth, and sin no more than he has to, and take comfort in the positive opinion of a registered Smartass.
xenophon41, I’m going to continue this hijack, because it goes to the heart of what I have spent almost a month dealing with in these issues.
You state in your latest post:
Constitutional law is just that, law. It isn’t opinion, it isn’t whimsy, it isn’t uneducated belief or supposition. It is based in the main on application of law to facts. Your assertion that any law clerk could render a decision based on case law apparently shows you misunderstand the concept of stare decisis. I’m not being too critical of that; many law students never manage to understand this idea of the distinction between concepts set forth in case law and the application of such guiding principles in an individual case. But if you want to discuss law, you can’t do so in an effective way by making assertions that aren’t based on the actual law, as set forth in the cases which interpret the meaning of the words being bandied about.
I will give an example. Many people who don’t understand the law under the ‘equal protection clause’ of the Fourteenth Amendment assert that ANY disparate treatment must be a violation of the clause. They are incorrect in their belief, because the Supreme Court has consistently identifed that not every classification drawn by a law is wrong; after all, all laws classify people in one way or the other. Instead, the Court has established, as a matter of law, that some classifications are very suspect, and others will be, in essence, rubber-stamped by the courts. To argue that a classification violates the equal protection clause without at least engaging in a discussion of the relevant legal concepts (I don’t give a rat’s ass if you can cite cases or not) is a waste of time; it is making an uneducated argument with no merit because you are discussing law, not popular opinion, or partisan rhetoric, etc.
On rare cases, the Supreme Court sets a new path. They don’t do so out of whimsy, or in response to popular opinion (usually), and when they are perceived as so doing, they usually end up under considerable criticism. Sometimes they are handling an issue of first impression, so there is little relevant case law to worry about. But they STILL work with the general principles they have laid down; principles which those who engage in debate about the law should apply, or at the very least, explain why they feel those principles should not apply.
You state you can give your opinions based on your understanding of constitutional law. You can do anything you want, be my guest. But if you intend to look like a fool by stating things that aren’t based in law or fact, by discarding reason for uneducated opinion, people like me are going to tell you that that is what you are doing, and disparage such arguement. And if you don’t like it, my recommendation isn’t to think that the person calling your arguement uneducated and irrelevant under the law is some sort of elitest scum, but to explain how your opinion IS educated, and should be listened to.
DSYoungEsq (mind if I call you D?), although I agree with elucidator’s spirited …er… soliloquy in your defense, I’ll press on (although I think this may be a losing battle).
Your latest post was quite helpful and quite clear; I am less ignorant for having read it. I completely understand your example regarding the equal protection clause (a subject that has been examined in more than a few threads here, even before the election), and I also (my hyperbolic comment about skilled law clerks notwithstanding) believe I understand the concept of stare decisis.
Consider that, despite the benefit of a (presumed) thorough understanding of the relevant legal concepts concerning ‘irreparable harm’, the Supremes (and lawyers across the nation) still manage to be deeply divided about the meaning of the term. And this is not an unusual situation for the court, is it?
My point is this: with every new situation presented to the Court, there will be differences in the interpretation of relevant law among the Justices, and these differences of opinion will be considered valid outside of the context of case law, because while they must, as you say, “work with the general principles” laid down by case law, they must also employ their own judgment in the application of those principles. And that judgement is a matter which can be disputed with some validity by any student of constitutional law.
I’m not saying that because the decision was not unanimous my disagreement with the majority should deserve the same consideration as Justice Steven’s dissent. After all, the amount of legal weight behind my disagreement is [understatement]considerably less[/understatement] than that carried by a USSC Justice.
However, it is reasonable to me that, when delivered on a public message board and supported by a logical examination of current conditions as they relate to the constitutional issue under discussion, my disagreement merits a less arrogant dismissal than
Please, fight my ignorance of the applicable legal principles when I’ve exhibited ignorance, but don’t tell me my logic is invalid because I haven’t related it to relevant legal concepts that are typically in dispute at the highest levels. That is the idea which I termed “elitist crap.” Note that I DID NOT call you “elitist scum”, nor do I think of you as “scum” of any sort, nor would I defend my arguments with such attacks.
[[sub]okay this REALLY the[/sub] END OF HIJACK]
DS has repeatedly been asked by several of us here to lay off the ad hominem stuff such as what you quoted, but with no effect. Fortunately, it’s easy to scroll past it. Don’t waste time responding; just consider the source.
The deal is, Elvis, I do consider the source; because I value the knowledge I gain from his posts, I’d rather cultivate a mutually beneficial and cordial exchange with the big D.
Hey, Jon, goodtaseeya! Sorry I haven’t had time to visit your board lately.
Remember, we’re talking about whether or not Gore is acting like a ‘sore loser’ here; perceptions are just as much part of the game as legalities. Here, I don’t think the popular vote result is without meaning - Gore undisputedly won something, and something that’s generally been considered important. Getting the ‘right’ outcome - - coinciding with the popular result - has long been part of the argument for keeping the EC around. Getting the popular win is not without meaning.
Hell, the last few days before the election, it looked like Bush was going to win the popular vote, and lose in the EC. And there were a lot of conservatives who were, those few days, talking about Gore ‘stealing’ the election if that transpired. You can tell which vote they thought was legitimate - then.
We’ve been over the effect of that call on the Panhandle in other threads. It’s a sparsely populated area (375,000 votes, total, this year), and the polls there were only open a few minutes (between 8 and 15 minutes, depending on which network) after the networks called it. People there would have had to have their car radio on a news station, while driving to the polls at the very last minute, to even hear the result in time to factor it in. I don’t know that it’s possible to measure the effect of this, but if you could, I’d bet the house that the net loss to Bush was no more than 1000 votes (3000 people turn around, and 2000 are Bush voters).
I have a hard time believing that voters in Iowa or New Mexico said, “They just called Florida; why bother to vote?” Especially since there was never really any point at which the election as a whole looked like it was in Gore’s pocket, since they un-projected FL just as they were projecting NM. (If you heard about NM first - which I did - you’d have had about 30 seconds there where you might’ve believed Gore had clinched.)
Perhaps, but it’s hard to see how. I mean, it’s easy to see how the machine might fail to see a hole when the chad was hanging on by a corner or two, blocking the view. But it’s hard to see how the machine could ‘see’ a hole where there wasn’t one. Certainly one kind of error is much more likely than the other.
As far as double-punches with circles, first you’d have to be able to read the punch card (in order to figure out whether you double-punched, and which hole to circle). It doesn’t have names on it, just rows, columns, and holes. I don’t see that happening more than a handful of times.
First I’d heard of it, so I’m afraid I have no clue. Especially because Palm Beach was where they accepted the dimples, remember.
I have been meaning to mention to DS that he has a tendency to sound more than a little condescending and pompous more than a little of the time, and it certainly undercuts the power of his generally well-regarded posts.
Something else I wanna know: DS, you apparantly set great store by your education and the Esq. after your name, as you are certainly entitled to do.
Given that you offer yourself up as our resident law expert, I am curious: what is your area of legal expertise? Are you practicing full time now? Do you have your own firm, are you a partner, an associate? How many years have you been a lawyer? And most confounding of all: if you are in fact currently practicing, how in heaven’s name do you manage to have SO much time to write SO many lengthy posts? We’ve all heard how lawyers work 80 hour weeks (or at least, they BILL for 80 hour weeks, hehehe). I’m just a little ol’ ponographer, and I find that merely READING all this stuff cuts deeply into my day, and I am a very fast reader…how DO you DO it?
I think the correct numbers are 10% and 25%. PBC is where they (for the most part) did not accept the dimples. It is for this reason that the Gore folks sued the PBC commission (and lost).
For instance, DSY, if there’s a problem with my comparison of different potential affronts to the equal-protection clause (near the top of the first page), I’d deeply appreciate some insight into why they’re not as comparable as they appear to me.
I agree with your fundamental point: everybody has opinions, but in specialized fields (such as law, mathematics, biochemistry, etc.), uneducated opinions really aren’t as valid as educated ones. But the gap is smaller between the educated layperson and the lawyer, than between the educated layperson and the mathematician. So, like xenophon says, educate us where possible. If I can try to educate people about statistics, you can give it the old law-school try in the case of the Equal Protection Clause.
Lets say, the Rams get slaughtered in one football game. Warner and Faulk on the sidelines, the sieve they call a defense let the other team score 75 points. Yet at the end of the season, they win because the other 15 games they won counted. Same sort of scenario with the popular vote, if that had been in effect prior to the election, then a heck of a lot more voters in Texas would have showed up to vote for both sides. Since it was a forgone conclusion that Bush won Texas (one game), many may have not decided to get out in the rain and cast their ballot.
I’d still be backing the EC. But I won’t confirm that there wouldn’t be other Repub partisans that might be calling for the same thing that the Freshman Senator from New York is advocating. Suffice it to say, that getting an ammendment to revoke the EC is probably a very low probability.
I had said… ‘I submit both arguments are meaningless after the fact.’ The time to upgrade the voting machines is between elections. The time to argue that the networks use some restraint in calling elections is prior to the elections. After the fact these arguments add nothing except what to do the NEXT time, not how we can make the outcome different, since we can never have a conclusive idea, given the antiquated voting machines, HOW any of the undervotes, or overvotes, really intended to vote.
You said…
But some of the stories I had read in Palm Beach county those that were confused about the ‘butterfly-ballot’ were told by the election workers if they double punched, to circle the vote on the ballot.
And a handful of times may be enough… ya never know…
First I’d heard of it, so I’m afraid I have no clue. Especially because Palm Beach was where they accepted the dimples, remember. **
[/QUOTE]
I think you got it backwards, Palm Beach accepted dimples if the entire ballot was dimpled. Broward had the poor near-sighted Republican that said ‘not discernable’ followed by two Democrats saying ‘vote for Gore… vote for Gore’.
Jon - with respect to Palm Beach, I stand corrected by both you and IzzyR. I indeed had it backwards.
milroyj - maybe you didn’t read my post, and it’s getting tiresome:
So if they do the handcount, and Bush wins, then all that’s left are the aspects of this election where life’s unfair, but there ain’t a damned thing you can do.
Ok, let’s do this. Assign all the Buchanan votes to Gore, because, after all, nobody really wanted to vote for Buchanan.
Let’s also do what the FSC overlooked–recount the overvotes. If a ballot shows two or more votes for President, then obviously the ballot was confusing, Katherine Harris is a Republican hack, and/or Jeb Bush is the devil incarnate. In any case, all those people couldn’t have meant to vote for anyone but Gore. Solution? All overvotes to Gore.
Would that be more to your liking, or to your sense of “fairness”? Thought so.
Golly, I don’t want to give the impression that I was meaning to “bash” DS in any way. I was just kinda chiming in on what was apparantly not my feeling alone: that DS can be just a shade condescending and it would be nice if he would try not to be quite so.
The rest of my particular post was sincerely querying about DS’ attorney-ness cuz I’m curious, nothing more.
I don’t buy that one on any level for a split second.
A) They called it 12 minutes before the end of the hour, for one thing. 12 minutes out of what, 12 hours?
B) It could affect people BOTH ways;
they called it for the guy I don’t want! Dammit, I’m going to make sure I get in there and put my vote in for the they guy I DO want. I know they call based on a tiny result, maybe those votes will make a difference
They called it for the guy I DO want; good, now I’m going to go help nail down his victory
C) Oh, well, the presidential contest may be called, but I have lots of other things to vote for or against
D) It’s 12 minutes before the polls close. Chances are better than excellent that I am more than dressed and ready or even in the car, I’m probably walking through the poll doors. I’m gonna turn around and walk away?
E) this is the one that is really most important: If someone does not vote because on TV they said the result is X, it is their own foolish fault. What the hell is wrong with them that their decision to vote or not is completely dictated by what the TV says? I’m in LA, my entire life I’ve been dealing with hearing the results from the rest of the country before the polls close. Almost all my life, every election has had an extremely clear winner, my vote was never going to make the tiniest smidge of difference. It has never had the slightest effect on me. I’m a citizen. This is my big moment…my government is asking me to let them know what I want and what I think, not to be on the winning team, just play the goddamn game. And I do. I expect everyone else to do the same.
